Nursing Politics Out of the Law

A California appeals court says state law only allows nurses to give diabetic students insulin in schools, because it's a nursing function and requires some skill and scientic knowledge.

Parents are outraged. The Children With Diabetes forums lit up once this ruling came down. Though some are criticizing the courts for ruling this way, most realize that it's not the state or appellate court at fault here - most parents along with the American Diabetes Association and JDRF and other D-affiliated groups are vowing to take this fight to the California legislature (already done, but to no avail as of yet). Though this case is specific to California, this is an issue that's being debated nationwide as the country faces a nursing shortage and cash-strapped schools are cutting those positions. Some parents worry that this could lead to "special schools" where D-Kids are herded in order to have that kind of care state law says can only be given by nurses.

But it's not only the United States where this is happening - Ontario is facing a related issue about D-Care in Schools, and it's all playing out with the Bill of Rights for Pupils With Diabetes.

The case that sparked this ruling began brewing five years ago, when parents and the American Diabetes Association sued two California school districts on claims that officials were failing to ensure D-Students could receive necessary administration of medications at school. The sides settled that case in 2007, with part of that settlement requiring the state to issue a legal advisory that trained school personnel who weren't nurses could give insulin if those licensed nurses weren't available, as part of the Section 504 plans or individualized education programs. The American Nurses Association filed its own suit after that, alleging the state department was violating the state's Nursing Practice Act.

Those nurses claim the health of diabetic public school students will be in jeopardy if trained school personnel other than nurses are permitted to inject insulin – a drug they assert is dangerous, requires substantial scientific knowledge to safely administer, and poses a significant risk of harm if administered in error.

Of course, disagreeing and arguing that non-nurses who are trained can administer insulin: the American Academy of Pediatrics, the American Association of Clinical Endocrinologists, the Pediatric Endocrine Nursing Society, the American Association of Diabetes Educators and the Juvenile Diabetes Research Foundation.

But Sacramento Superior Court Judge Lloyd G. Connelly ruled that only nurses could give insulin, because that's how state law is written. On appeal, the three-judge Third Appellate District panel issued its decision in a 41-page decision on June 8, in the case of American Nurses Association, et al. v. Jack O'Connell, as Superintendent of Public Education, C061150.

Basically, the appellate judges upheld that state judge's finding that California law doesn't allow unlicensed school personnel to administer insulin to diabetics in non-emergency situations. Rather, the state's Nursing Practice Act prohibits the "practice of nursing" by non-nurses, and glucagon or insulin-injecting is a nursing function. In analyzing the legal arguments made by the state Dept. of Education and American Diabetes Education that were parties to the suit, the court found that the current nursing shortage didn't constitute an emergency situation and that school personnel aren't able to do "gratuitous nursing" as family or friends might be able to do.

In response, the national and state nursing groups are praising this decision. Saying it's all about the safety of kids. If kids need insulin and can't do it themselves, then it would be up parents to be at the school at any given moment to do what's needed for their kids. The nurses argue that giving insulin requires a nursing education and certification, and to think or allow otherwise would somehow endanger kids' health and safety.

Uh huh... Right. Because nurses are "always" right... And hold up. Does that mean that because I have successfully administered my own insulin for 26 years, that I AM A NURSE?? Well then, where is my accompanying certificate and high salary?????

Significantly, I find that one of the most telling aspects of this whole court battle is that the courts don't agree that the nurses are correct on this, regardless of what state law says.

The California appellate court writes: "Whatever may be thought of the wisdom, expediency, or policy of a statute, we have no power to rewrite the statute to make it conform to a presumed intention that is unexpressed. If diabetic students and their parents would be better served by allowed unlicensed, but trained, school personnel to administer insulin injections when the administration if such injections by a licensed nurse is not feasible, it is up to the Legislature, not the courts, to change the law."

Even more significant is a concurring opinion from Presiding Judge Arthur Scotland, who agrees with the final decision but writes seperately not because he wants to but because he must.

"It is just the result, compelled by the Legislature's policy decision and unsuccessful efforts to change the policy, that make little sense to me. Like my colleagues, I agree that the trial judge got it right. If there is a flaw in a statutory scheme that does not run afoul of the Constitution, it is up to the Legislature, not the courts, to fix it. Thus, even though it seems to me that allowing trained school personnel other than nurses to administer insulin injections for diabetic school students when necessary would be the wiser public policy decision, I must defer to the Legislature's policy judgment and the subsequent legislative and executive decisions preventing a change in that policy - regardless of whether they were the product of legitimate concern for the safety of diabetic public school students or the result of a labor organization protecting its turf and flexing its political muscle."

See?! Even the judges don't like this, and even recognize that the American Nurses Association and its California arm are doing what's political here. The courts think it's wrong. They interpreted the law as it's written, not what they or anyone else may feel is right or wrong. That is what judges are supposed to do. The ones people need to be targeting is the California General Assembly, which has failed to revise state law to adequately address this issue and instead leaves in place the Nursing Act to deal with it. That's where parents must direct their anger, their advocacy. Start here, by writing a letter to respective lawmakers. Flood their offices with calls and emails and letters, and schedule times to meet with these decision-makers face to face so that they know and won't forget how important this issue is. Contact the local JDRF or ADA affiliates to join whatever coordinated campaigns and efforts they have going already.

This is the Democratic Process. Use it. Raise Your Voice. Even if you don't live in the state or have a Child With Diabetes, please express your opinion - because this isn't just about California, it's about all states that are suffering a nursing shortage and have Children With Diabetes in schools who need real, practical, hands-on help. If it can happen there, it can happen in your state and to your own or other D-Kids. Because we know that Highs and Lows don't wait for a nurse who may be at another school, helping some other kid. It's not responsible for nurses to say they are the only ones, when this very position could put kids in danger.

Granted, you must keep some liability perspective here on the choice lawmakers are faced with: what happens if a teacher sees something wrong with a Kid With Diabetes and decides to inject that child with insulin, despite the fact that the child was suffering at that time from a Low blood sugar? If that child passes out or worse, who's responsible... The school? The teacher? The nurse who wasn't there? There is some merit to that argument, though I do not think it's what motivated the nurses in this case to raise their nursing degrees.

Personally, I interpret the facts to say that it's political and the nursing profession's self-preservation is at hand. To me, this position that only nurses can give insulin or administer D-Care is ridiculous and goes against the nurse's Nightingale Pledge to "devote myself to the welfare of those committed to my care."

This shouldn't be a nursing profession position or a liability issue, but one that makes sure diabetic kids are able to attend school the same as any other kid. Isn't that the whole point behind the 504 plans, to ensure that kids with disabilities have access to the same kind of education that other kids get?